HomeMy WebLinkAbout13-505
ADVICE OF COUNSEL
February 1, 2013
13-505
This responds to your letter dated November 19, 2012, and your email received
December 12, 2012, by which you requested a confidential advisory from the
Pennsylvania State Ethics Commission.
Issue:
Whether, in your former capacity as an A for the B Office of Political
Subdivision C, you would be considered a “public employee” subject to the Public
Official and Employee Ethics Act (the “Ethics Act”), 65 Pa.C.S. § 1101 et seq., and the
Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq., such that the
restrictions of Section 1103(g) of the Ethics Act would now be applicable to you.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts, the material portion of which may be fairly
summarized as follows.
You are licensed as a D in the Commonwealth of Pennsylvania. On [date], you
separated from your position as an A for the B Office of Political Subdivision C in order
to work on an E. You state that your employment with the E ended on [date].
You have submitted a copy of a job description for the position of A for the B
Office, which document is incorporated herein by reference and provides, in pertinent
part, as follows:
[summary of position]
[lists of duties and responsibilities of the position]
Job description, at 1-2.
You state that your role in the B Office primarily focused on Political Subdivision
C’s [type of process] and that you served as a liaison between the F and G on Hs and Is
before G. You would review Hs or Js assigned to you by your supervisor and identify
which Political Subdivision C departments or agencies were implicated by the K. You
would then notify the department heads and department L of the existence of the K and
ask them to review it and provide feedback on the matter.
If a department had no issues with the K, you would communicate this to the M of
G who had introduced the J and provide support to the department to prepare for the N
Confidential Advice, 13-505
February 1, 2013
Page 2
on the matter. If a department voiced concerns or opposition to the K, you would
facilitate meetings between the department and the M of G to attempt to work through
the issues. If no compromise could be facilitated, you would report the issue to your
supervisor, provide an assessment of the situation, and take direction on how to
proceed.
You state that at no time did you have supervisory authority over any of the
departments or Political Subdivision C agencies with which you assisted on [type of
matters]. You further state that in addition to your typical [type of duties], you performed
outreach to G and Os on issues, including the Political Subdivision C P and Q, upon
direction of your supervisor.
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you following termination of your employment as an A with Political Subdivision C.
In particular, you pose the following questions:
(1) Whether your post-employment restrictions would apply only to the F or to
the R;
(2) Whether your post-employment restrictions would apply to G as an S; and
(3) What is the exact nature of your post-employment restrictions as related to
the business of your firm which may be handled by other employees.
Discussion:
It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
In responding to your inquiry, the threshold question to be addressed is whether,
in your former capacity as an A for the B Office of Political Subdivision C, you would be
considered a “public employee” subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee."
Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
Confidential Advice, 13-505
February 1, 2013
Page 3
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
Confidential Advice, 13-505
February 1, 2013
Page 4
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary-treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
The following terms are relevant to your inquiry and are defined in the Ethics Act
as follows:
§ 1102. Definitions
"Ministerial action."
An action that a person
performs in a prescribed manner in obedience to the
mandate of legal authority, without regard to or the exercise
of the person’s own judgment as to the desirability of the
action being taken.
"Nonministerial actions."
An action in which the
person exercises his own judgment as to the desirability of
the action taken.
65 Pa.C.S. § 1102.
In applying the definition of "public employee" and the related regulatory criteria
to the submitted facts as to the duties of your former position, the necessary conclusion
is that in your former capacity as an A for the B Office of Political Subdivision C, you
would not be considered a "public employee" as that term is defined in the Ethics Act.
Based upon an objective review of the submitted job description, you were not
Confidential Advice, 13-505
February 1, 2013
Page 5
responsible for taking or recommending official action of a non-ministerial nature with
regard to any of the five categories set forth in the Ethics Act’s definition of the term
“public employee.”
The post-employment restrictions of Section 1103(g) of the Ethics Act only apply
to former public officials/public employees:
§ 1103. Restricted activities
(g) Former official or employee.--
No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. §1103(g).
Because the duties and responsibilities of your former position would not bring
you within the definition of “public employee” as set forth in the Ethics Act, Section
1103(g) of the Ethics Act would not apply to restrict you now.
The only provision of the Ethics Act that applies to you is Section 1103(b), which
applies to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics
Act provide in part that no person shall offer or give to a public official/public employee
anything of monetary value and no public official/public employee shall solicit or accept
anything of monetary value based upon the understanding that the vote, official action,
or judgment of the public official/public employee would be influenced thereby.
Reference is made to these provisions of the law not to imply that there has been or will
be any transgression thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act.
Conclusion:
Based upon the submitted facts, in your former capacity as an A for
the B Office of Political Subdivision C, you would not be considered a “public employee”
as that term is defined by the Public Official and Employee Ethics Act ("Ethics Act”), 65
Pa.C.S. § 1101 et seq. Consequently, upon termination of your employment with
Political Subdivision C, Section 1103(g) of the Ethics Act, which imposes post-
employment restrictions upon former public officials/public employees, did not become
applicable to you. Section 1103(b) of the Ethics Act applies to everyone. Lastly, the
propriety of the proposed conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided the requester has disclosed
truthfully all the material facts and committed the acts complained of in reliance on the
Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Confidential Advice, 13-505
February 1, 2013
Page 6
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Robin M. Hittie
Chief Counsel